Citation Nr: 0904339
Decision Date: 02/06/09 Archive Date: 02/13/09
DOCKET NO. 06-14 321A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an increased evaluation for lumbosacral
strain with bilateral L4-5 radiculopathies, status-post
bilateral L5-S1 laminectomy, currently evaluated as 60
percent disabling.
2. Entitlement to total disability due to individual
unemployability (TDIU).
3. Entitlement to service connection for degenerative joint
disease, cervical spine.
4. Entitlement to special monthly compensation based on the
need for regular aid and attendance or being housebound.
5. Whether new and material evidence has been received to
reopen a service connection claim for mental disorder,
paranoid schizophrenia, and if so, whether service connection
is warranted.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran, his mother, and his wife
ATTORNEY FOR THE BOARD
M. Pansiri, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 18, 1983, to
September 6, 1983, and February 23, 1987, to April 30, 1987,
during peacetime. The veteran's claims file contains a DD-
214 verifying his service from May 1983 to September 1983;
however, there is no DD-214 or documentation of discharge
that verify his service from February 1987 to April 1987
beyond the veteran's service treatment records (STRs) for
that period.
These appeals come before the Board of Veterans' Appeals
(Board) from March 1993, May 1994, December 1998, and August
2005 rating decisions of the Department of Veterans Affairs
(VA), Oakland, California, Regional Office (RO), which inter
alia denied service connection for a mental disorder and
determined that new and material evidence had not been
received to reopen a service connection claim for a mental
disorder, and denied entitlement to an increased evaluation
for a lumbar spine disability, TDIU, service connection for a
cervical spine disability, and special monthly compensation
based on the need for regular aid and attendance or being
housebound. The veteran disagreed with such decisions.
In November 2008, the veteran testified before the
undersigned Veterans Law Judge sitting at the RO. A copy of
the hearing transcript is of record and has been reviewed.
The reopened issue of entitlement to service connection for
mental disorder, paranoid schizophrenia, is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. On April 30, 1997, before the veteran's appeals for
entitlement to an increased evaluation for a lumbar spine
disability, TDIU, and service connection for a cervical spine
disability, were transferred to the Board, the agency of
original jurisdiction (AOJ) received written notification
from the veteran that he wished to withdraw these appeals.
2. On July 28, 2004, before the veteran's appeal for
entitlement to special monthly compensation based on the need
for regular aid and attendance or being housebound was
transferred to the Board, the AOJ received written
notification from the veteran through his representative that
he wished to withdraw this appeal.
3. In a March 1993 rating decision, the RO denied the
veteran's claim of service connection for a mental disorder;
the veteran was provided notice of the decision and of his
appellate rights.
4. The veteran did not appeal the March 1993 rating
decision, and such decision became final.
5. The evidence received since the RO's March 1993 rating
decision is not duplicative or cumulative of evidence
previously of record, and raises a reasonable possibility of
substantiating the veteran's service connection claim for a
mental disorder.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of timely appeals for
entitlement to an increased evaluation for a lumbar spine
disability, TDIU, service connection for a cervical spine
disability, and special monthly compensation, filed by the
veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5)
(West 2002); 38 C.F.R. §§ 20.202, 20.204 (2008).
2. The RO's unappealled March 1993 decision that denied
service connection for a mental disorder is final. 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d),
20.302, 20.1103 (1993) (current version 2008).
3. Evidence received since the RO's March 1993 rating
decision is new and material; the claim of entitlement to
service connection for a mental disorder is therefore
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §
3.156(a) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Evaluation for a Lumbar Spine Disability, TDIU,
Service Connection for a Cervical Spine Disability, and
Special Monthly Compensation
The present appeals arise from May 1994 and December 1998
rating decisions to which the veteran filed timely notices of
disagreement (NOD), received July 1994 and April 1999, with
the denials of an increased evaluation for a lumbar spine
disability, TDIU, service connection for a cervical spine
disability, and special monthly compensation. In April 1995
and May 1999, the veteran submitted VA Form 9, "Appeal to
Board of Veterans' Appeals" (Substantive Appeal), indicating
he was appealing the aforementioned denied issues.
During the pendency of the veteran's appeals, in an April
1997 rating decision, the RO increased the veteran's
evaluation of his service-connected lumbar spine disability
to 60 percent disabling, and granted TDIU. In a statement
signed by the veteran and received by the AOJ on April 30,
1997, the veteran indicated that he was satisfied with the
RO's decision and wished to withdraw "all pending appeals,"
which the Board construes as appeals of the issues of
entitlement to an increased rating for a lumbar spine
disability, TDIU, and service connection for a cervical spine
disability. See "Statement in Support of Claim" form, VA
Form 21-4138, received April 1997.
Further, in a statement received from the veteran's
authorized representative and received by the AOJ on July 28,
2004, the veteran's representative indicated that the veteran
wished to withdraw his pending appeal for special monthly
compensation based on the need for regular aid and attendance
or being housebound. See July 2004 Memorandum from the
Disabled American Veterans; June 1993 "Appointment of
Veterans Service Organization as Claimant's Representative"
form, VA form 21-22.
Pursuant to the laws administered by VA, the Board may
dismiss any appeal which fails to allege specific error of
fact or law in the determination being appealed. 38 U.S.C.A.
§ 7105(d)(5) (West 2002); 38 C.F.R. § 20.202 (2008). A
Substantive Appeal may be withdrawn either on the record at a
hearing or in writing at any time before the Board
promulgates a decision. 38 C.F.R. § 20.204(b)(1).
Withdrawal may be made by the appellant or by his or her
authorized representative. 38 C.F.R. § 20.204 (2008)(a).
Here, the veteran has withdrawn the appeals of entitlement to
an increased evaluation for a lumbar spine disability, TDIU,
service connection for a cervical spine disability, and
special monthly compensation. Hence, there remain no
allegations of errors of fact or law for appellate
consideration on the aforementioned issues. Accordingly, the
Board does not have jurisdiction to review the appeals of the
issue of entitlement to an increased evaluation for a lumbar
spine disability, TDIU, service connection for a cervical
spine disability, and special monthly compensation; thus,
these appeals are dismissed.
II. Application to Reopen Mental Disorder Claim
A. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA in terms of its duty to notify and assist
claimants. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2008).
Without deciding whether the notice and development
requirements of the VCAA have been satisfied with respect to
the veteran's new and material evidence claim for a mental
disorder, the Board concludes that the VCAA does not preclude
the Board from adjudicating this portion of the veteran's
claim. This is so because the Board is taking action
favorable to the veteran by reopening his claim. See Bernard
v. Brown, 4 Vet. App. 384 (1993).
B. Legal Criteria and Analysis
Rating decisions are final and binding based on evidence on
file at the time the claimant is notified of the decision and
may not be revised on the same factual basis except by a duly
constituted appellate authority. 38 C.F.R. § 3.104(a). The
claimant has one year from notification of a RO decision to
initiate an appeal by filing a notice of disagreement with
the decision, and the decision becomes final if an appeal is
not perfected within the allowed time period. 38 U.S.C.A. §
7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If new and
material evidence is presented or secured with respect to a
claim which has been disallowed, the Secretary shall reopen
the claim and review the former disposition of the claim. 38
U.S.C.A.
§ 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
Evidence is considered "new" if it was not previously
submitted to agency decisionmakers. 38 C.F.R. § 3.156(a).
"Material" evidence is evidence which, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. Id.
New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and
must raise a reasonable possibility of substantiating the
claim. Id. For the purpose of determining whether a case
should be reopened, the credibility of the evidence added to
the record is to be presumed. Justus v. Principi, 3 Vet.
App. 510, 513 (1992).
The veteran initially filed a service connection claim for a
mental disorder in August 1992. In a March 1993 rating
decision, the RO, in pertinent part, denied service
connection for a mental disorder on the basis that there was
no evidence that the disability was incurred in or aggravated
by service. Because the veteran did not submit a Notice of
Disagreement to initiate appellate review and submit a
Substantive Appeal to perfect an appeal of the RO's March
1993 rating decision, that determination became final, based
on the evidence then of record. 38 U.S.C.A.
§ 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103
(1993) (current version 2008).
The evidence of record when the RO decided the claim in March
1993 included the veteran's service treatment records (STRs),
service personnel records, private medical records from St.
Mary's Hospital and Medical Center and Providence Hospital of
Oakland, and statements submitted by or on behalf of the
veteran.
By way of history, in January 1996, the veteran sought to
reopen his service connection claim for a mental disorder.
See January 1996 Hand-Written Statement by the Veteran. In a
March 1996 rating decision, the RO denied the veteran's claim
to reopen the service connection claim for a mental disorder
because there was no new and material evidence to reopen the
claim. In August 1997, the veteran again sought to reopen
his service connection claim for a mental disorder. This
claim to reopen was denied again by the RO in a February 1998
administrative decision, on the basis that there was no new
and material evidence to reopen the claim. In August 1998,
the veteran once again sought to reopen his service
connection claim for a mental disorder. In an August 2005
rating decision, the RO denied the veteran's claim to reopen
once again based on the lack of new and material evidence to
reopen the claim.
Evidence associated with the claims folder since the prior
final March 1993 rating decision includes statements and
written argument submitted by or on behalf of the veteran,
Social Security Administration (SSA) records, a June 1993 VA
Mental Examination Report, private medical records from
Washington Hospital and CPC Fremont Hospital, and a hearing
transcript from the Board.
On review, the Board finds that new and material evidence has
been received to reopen the service connection claim for a
mental disorder. In this regard, the claims folder contains
a June 1993 VA Mental Examination Report, in which the
veteran reported that "his psychiatric problems began in
1987 following a head injury he received in Coast Guard Boot
Camp." Further, in a May 1999 hand-written statement from
the veteran, he indicated that he suffered a head injury in
service in 1987, and six months after discharge he started
having hallucinations and psychiatric problems. Presuming
the veteran's June 1993 and May 1999 statements credible for
the purpose of reopening the service connection for a mental
disorder claim, the Board finds that such evidence, either by
itself or when considered with the previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. 38 C.F.R. 3.156(a). The veteran's
June 1993 and May 1999 statements are material in that they
imply that his mental disability may have been incurred
during service, and therefore raises a reasonable possibility
of establishing the claim. See id. As such, the Board finds
that the June 1993 and May 1999 statements are considered new
and material for the purpose of reopening the service
connection claim for a mental disorder, and such claim is
therefore reopened.
ORDER
The appeal for entitlement to an increased evaluation for
lumbosacral strain with bilateral L4-5 radiculopathies,
status-post bilateral L5-S1 laminectomy, currently evaluated
as 60 percent disabling, is dismissed.
The appeal for entitlement to TDIU is dismissed.
The appeal for entitlement to service connection for
degenerative joint disease, cervical spine, is dismissed.
The appeal for entitlement to special monthly compensation
based on the need for regular aid and attendance or being
housebound is dismissed.
New and material evidence to reopen a claim of entitlement to
service connection for mental disorder, paranoid
schizophrenia, has been received; to this extent, the appeal
is granted.
REMAND
The veteran also seeks service connection for mental
disorder, paranoid schizophrenia, which he maintains was
incurred in-service as a result of a head injury he sustained
when he slipped on ice while serving with the Coast Guard in
1987. See April 1993 "Statement in Support of Claim" form,
VA Form 21-4138; November 2008 Board Hearing Transcript.
Review of the record reflects that additional development is
necessary prior to analyzing the claim on the merits.
Review of the evidence of record and the veteran's testimony
indicates that he received treatment for his claimed mental
disorder, paranoid schizophrenia, from private medical
facilities, identified as Herrick Hospital in Berkley,
California; Stanford Hospital in Stanford, California; Eden
Medical Center in Castro Valley, California; AHA Bates;
Washington Hospital; and Fremont Hospital in Fremont,
California. See Veteran's Hand-Written Statement, received
October 2005; July 2005 "Authorization and Consent to
Release Information to VA" forms, VA Form 21-4142; November
2008 Board Hearing Transcript. In his Authorization and
Consent forms, received July 2005, the veteran indicates that
he received treatment for his psychiatric condition at
Herrick Hospital from January 1994 to the present, Stanford
Hospital from 2000 to the present, and Eden Medical Center
from January 1995 to the present. The veteran through his
representative also indicated that these treatment records
"establish entitlement to service connection for
schizophrenia." See Memorandum from Disabled American
Veterans, received July 2005. Review of the record reveals
that these treatment records are not associated with the
claims file, and no attempt was made by the RO to obtain
these records.
VA is, therefore, on notice of records that may be probative
to the claim. See Robinette v. Brown, 8 Vet. App. 69 (1995).
Consequently, the veteran's complete private treatment
records from Herrick Hospital, Stanford Hospital, Eden
Medical Center, AHA Bates, Washington Hospital, and Fremont
Hospital, regarding the veteran's mental disorder, paranoid
schizophrenia, should be obtained and associated with the
claims file.
Accordingly, to ensure that VA has met its duty to assist in
developing the facts pertinent to the claim remaining on
appeal and to afford full procedural due process, the case is
REMANDED for the following action:
1. After obtaining the appropriate
releases from the Veteran, the AMC/RO
should obtain the veteran's complete
private treatment records from Herrick
Hospital (from January 1994 to the
present), Stanford Hospital (from 2000
to the present), Eden Medical Center
(from January 1995 to the present), AHA
Bates, Washington Hospital, and Fremont
Hospital, regarding the veteran's
mental disorder, paranoid
schizophrenia, and associate these
records with the claims file.
To the extent there is an attempt to
obtain records that is unsuccessful,
the claims file must contain
documentation of the attempts made, as
well as of any related follow up
correspondence. The veteran and his
representative should also be informed
of the negative results, and should be
given an opportunity to obtain the
records.
2. Upon completion of the above-
requested development, the RO should
readjudicate the veteran's service
connection claim for mental disorder,
paranoid schizophrenia, taking into
account any newly obtained evidence.
All applicable laws and regulations
should be considered. If any benefit
sought on appeal remains denied, the
veteran and his representative should
be provided with a supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs